In Neil Netanel’s recent book titled, he advocates for a copyright system that puts freedom of expression at the forefront. He argues that copyright has been thought of as a property right despite the fact that it was originally conceived as a balance designed to encourage original expression. As a result, freedom of expression has come into direct conflict with copyright.

In , he considers the history of copyright law and comes to the conclusion that the conflict between freedom of expression and copyright has risen to the forefront by reason of changes in technology. Copying different forms of media has become easier than when copyright law was first conceived. Furthermore, with the expansion of the internet, the transmission and dissemination of works has become extremely convenient.

Based on copyright law’s original purpose, Netanel submits that the scope of rights given to authors should be determined based on its ability to serve as an “engine of free speech.” According to him, there are two reasons behind elevating free speech to such a level. Firstly, the enormous potential impact that copyright law has on free speech leads to the inescapable conclusion that free speech should serve to shape copyright. Secondly, free speech would likely be the only way to properly determine the scope of rights afforded to authors.

Netanel’s views of the US copyright system allow him to submit an argument where free speech and copyright inform one another. The fact that copyright is enshrined in the US Constitution supports to this result. However, in Canada, free speech, as enshrined in our Charter, would seem to indicate that it must dictate the limits of copyright as the Copyright Act must be consistent with the Charter’s rights and values. It is this prospect that I find troubling especially in the digital age.

In Netanel’s Introduction, he also discusses the ongoing lawsuits against YouTube and MySpace. I argue that despite the fact that all of the material on YouTube and MySpace can be considered some form of expression, there is a lot of material that is not original and simply a direct, impermissible, uncredited quote from the original author. One solution, currently in practice, has been blanket licenses by the likes of Universal Studios, but this licensing system really does nothing to promote original expression. Although the concept of originality does not jibe with the goal of free expression, I am somewhat unwilling to entirely give up on the concept. In my opinion, it cannot be denied that the copyright system does provide some incentive for original expression. A blanket license takes away whatever incentive, however small, for original expression that the copyright system could provide.

Furthermore, YouTube is not exactly known for preventing what are obvious infringements of copyright. One can frequently find full length music videos and television shows with very little added expression if any. In fact, one can even find users pirating other users; submitting material as if it were their own. Free expression does inform and should inform copyright, especially when it is clear there is meaning behind the expression. Unfortunately, in the context of YouTube, the possibility of abuse is far too high and any meaning is frequently hidden by blatant plagiarism. Freedom of expression, under these circumstances, should be limited to the extent that it can only inform copyright but should not override it.

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I have always known that ISPs impose limitations on certain programs or websites. There generally hasn’t been much of an outcry, but last week, Canada’s patience reached a boiling point. On Tuesday, it was revealed that Bell Canada planned to further expand its traffic shaping policies to the point where businesses that rent bandwidth from them would be restricted as well. The following day, numerous users who attempted o download a TV show made available by the CBC through the torrent system, experienced tremendous slow-downs. On Friday, the National Union of Public and General Employees officially wrote to the CRTC and urged them to investigate the practice of traffic shaping and its impact on users. It is worth noting that the CRTC, in 1999, had refused to regulate the internet. [1] Perhaps it is time to revisit that decision.

Bell Canada defended its position on Friday that traffic shaping was necessary in that it was preventing “small portions of bandwidth hogs from slowing speeds down for all customers.” This goal seems noble enough and if it were their sole motivation and necessary, I don’t think there would be much of an issue. However, they further admit that they actually do have the capacity to accommodate all users, but engage in the practice anyway to limit programs that could be potential “threats to their own business.” [2] I submit that this second line of reasoning can lead down a very dangerous path. The internet has always been about free access to information. The fact that ISPs are allowed to place limits based on their own business interests can severely restrict Canadian’s access to that information. (I should also point out that this story was not available on ctv.ca, a Rogers owned subsidiary.)

Even if both Rogers and Bell are running out of bandwidth, wouldn’t it still be in Canada’s best interest to encourage them to upgrade their systems rather than allow them to impose limits? In a study conducted last year, it was predicted that internet slowdowns could occur as early as 2010. It concluded that demand was simply outpacing capacity and that in order to close that gap, ISPs would have to spend about 60-70 percent more than what they currently have budgeted. [3] I see no motivation for a company to expand their bandwidth if they can arbitrarily limit the amount of information their customers have access to instead.

I also must wonder why demand is outpacing capacity at such an incredible rate. When I subscribed to Rogers (over 5 years ago), I was told that I would have unlimited capacity every month. Such a practice seems equivalent to one where an airline purposely overbooks their flights except in that situation, the customer is usually given some form of compensation. Do we really want to encourage this practice? I also submit that if we are running out bandwidth, then it can be attributed to the ISP’s own poor planning and allowing them to impose limits would not improve
Canada’s internet infrastructure.

In the short term, maybe limits are necessary in order to ensure consistent internet access, but it cannot be the ISPs who prescribe these limits. The internet has become a large and perhaps even the dominant source for information and any limit prescribed by an ISP would severely affect Canada’s access. The CRTC must step in and regulate the industry in order to ensure there is fair and consistent access for all consumers.

[1] Union Urges CRTC to Curb Interference by Bell, Rogers.

[2] ibid.

[3] Internet Slowdown on Horizon, Study Claims.

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